State v. Orosco

• Decision Date: 02 December 1982
• Docket Number: No. 5731,5731
• Citation: 99 N.M. 180,655 P.2d 1024,1982 NMCA 181
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Richard OROSCO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1024

655 P.2d 1024

99 N.M. 180

STATE of New Mexico, Plaintiff-Appellee, v. Richard OROSCO, Defendant-Appellant.

No. 5731.

Court of Appeals of New Mexico.

Dec. 2, 1982.

R. Raymond Twohig, Jr., Deaton & Twohig, Albuquerque, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

We granted defendant's application for an interlocutory appeal from an adverse ruling of the trial court on defendant's motion to dismiss a criminal information charging him with battery on a peace officer, contrary to Sec. 30-22-24, N.M.S.A. 1978. Defendant's motion was based upon the theory of collateral estoppel. We reverse and remand to the trial court with directions to grant defendant's motion and dismiss the criminal information.

On February 15, 1981, defendant was charged in the Lea County Magistrate Court with resisting and obstructing an officer, and disorderly conduct, contrary to Secs. 30-22-1 and 30-20-1, N.M.S.A. 1978, respectively. On the same day, defendant was charged in the district court with the felony of battery on a peace officer. All the charges arose from the same event that occurred at the drag races earlier that day.

On September 20, 1981, a preliminary hearing was held on the charge of battery on a peace officer. By agreement of counsel, the same evidence was applied to the misdemeanor charges of resisting and obstructing an officer, and disorderly conduct. The magistrate found the defendant not guilty of the misdemeanor charges. Defendant was bound over to district court on the felony charge.

The magistrate was called as a witness for the defense at the hearing on defendant's motion to dismiss the charge of assault on a peace officer. The magistrate explained that his reasons for the acquittal were two: because defendant was acting "in defense of his dad", and for the reason that he did not "believe anybody should be charged with three, four different charges for one action." In the district court's denial of defendant's motion to dismiss, the trial court found as a fact that the defense of protection of his father was believed by the magistrate and was the basis for the acquittals. The trial court further found that:

The finding by Judge Hayes is a finding by a fact finder on an issue of ultimate fact which would bar redetermination of that issue in accordance with the principle of collateral estoppel in this case.

However, the Magistrate Court did not have jurisdiction to try the felony charge which is pending in this case. As a result, State vs. James, 93 N.M. 605, 603 P.2d 715 (1979) therefore bars application of the collateral estoppel doctrine in the present prosecution.

The question before us is simply whether, after a magistrate's determination that defendant was not guilty because he was acting in defense of another, the State could constitutionally bring him before a new fact finder to relitigate that issue. The answer is no.

In State v. James, 93 N.M. 605, 603 P.2d 715 (1979), after deciding that jeopardy had not attached, our Supreme Court went on to state:

We also reassert the jurisdictional exception to using a lesser included offense as a bar to prosecution of the greater offense. This exception was set forth in State v. Goodson, 54 N.M. 184, 186, 217 P.2d 262, 263 (1950), where the Court quoted the following language from 1 F. Wharton, Criminal Law Sec. 394 (12th ed.):

And a conviction of a lesser offense bars a subsequent prosecution for a greater offense, in all those cases where the lesser offense is included in the greater offense, and vice versa. But a former trial and acquittal or conviction will not be a bar to a subsequent prosecution, unless the defendant could have been convicted on the same evidence in the former trial, of the offense charged in the subsequent trial. An acquittal or conviction for a minor offense included in a greater will not bar a prosecution for the greater if the court in which the acquittal or conviction was had was without jurisdiction to try the accused for the greater offense.

This exception was recognized in the specially concurring opinion of Justice Sosa in State v. Tanton, 88 N.M. 333, 337, 540 P.2d 813, 817 (1975) I would hold that conviction bars prosecution of a greater offense, subject to one exception: If the court does not have jurisdiction to try the crime, double jeopardy cannot attach. Double jeopardy requires that a court have sufficient jurisdiction to try the charge.

This exception does not conflict with the United States Supreme Court decision in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). The Waller decision stands for the proposition that two courts within a state--district and municipal--cannot each try a person for the same crime. However, the Supreme Court recognized the possible existence of exceptions to this rule. Id. at 395, n. 6, 90 S.Ct. 1184. In Ashe v. Swenson, 397 U.S. 436, 453, 90 S.Ct. 1189 [1199], 25 L.Ed.2d 469 (1970), Mr. Justice Brennan specified and elaborated upon several of these exceptions in his concurring opinion. He stated: "Another exception would be necessary if no single court had jurisdiction of all the alleged crimes." Id. at 453, n. 7, 90 S.Ct. at 1199, n. 7.

In James the Supreme Court relied on footnote 6 of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), for the proposition that the United States Supreme Court recognized the possible existence of exceptions to the rule that two courts within a state cannot each try a person for the same crime. Footnote 6 states:

If petitioner has committed offenses not embraced within the charges against him in the municipal court he may, or may not, be subject to further prosecution depending on statutes of limitation and other restrictions not covered by the double jeopardy restraints of the Constitutions of Florida and of the United States.

James only dealt with the lesser included offense rule and not collateral estoppel, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), or the same evidence rule, State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975), which has also been used in analyzing double jeopardy guarantees. The rule of collateral estoppel comes into play when an ultimate fact has once been determined at a previous trial. The same evidence rule comes into play when the facts offered in the magistrate court would not necessarily sustain a conviction in the second trial in the district court. In the instant case we are concerned with collateral estoppel because we are dealing with the proposition of whether an ultimate fact was determined in the magistrate court. Accordingly, James is not applicable. Further, it appears that James is not in conformity with Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); or, Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). We do not discuss this aspect because of Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).

In Ashe v. Swenson, the United States Supreme Court stated:

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important...